Considered and decided by
Schumacher, Presiding Judge, Harten, Judge, and Forsberg, Judge.*

U N P U B L I S H E D O P I N I O
N

HARTEN, Judge

Appellants,
a snowplow driver and the City of Minneapolis, challenge the district court’s
denial of their motion for summary judgment on respondent’s negligence
claim. They argue that the district
court erred in holding that the snowplow driver engaged in a ministerial rather
than a discretionary action and was not entitled to official immunity. Because we conclude that the snowplow driver
exercised discretion, we reverse.

FACTS

In
the early morning hours of January 24, 1997, appellant Gerald Allan Olson was
plowing snow for appellant City of Minneapolis. He operated a city-owned tandem dump truck with a mid-body plow
and several warning lights.

While
proceeding south for his second pass on Second Avenue, Olson stopped at a red
light on the corner of Washington Avenue and Second Avenue. He proceeded into the intersection at five
to ten miles per hour. Respondent Semaj
Simmons, who was traveling eastbound on Washington Avenue, testified that
Olson’s light was still red. Although
uncertain, Olson testified that his light had turned green. When Simmons entered the intersection, he
was struck by Olson. Olson did not see
Simmons’s vehicle before the collision.
He stated that a snow pile, estimated at four to five feet high, in the
center island obstructed his view.

Simmons
sued appellants for negligence.
Appellants moved for summary judgment, claiming that Olson was exempt
from statutory requirements and immune from common law negligence claims based
on official immunity. The district
court denied appellants’ motion. This
appeal followed.

D
E C I S I O N

Under
the Minnesota Rules of Civil Procedure, summary judgment is proper if

the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that either
party is entitled to a judgment as a matter of law.

Minn. R. Civ. P.
56.03.

Government
immunity from tort liability is a question of law that we review de novo. Kari v. City of Maplewood, 582 N.W.2d
921, 923 (Minn. 1998). For purposes of
reviewing a denial of summary judgment based on a claim of immunity, we assume
the facts alleged by the non-moving party are true. Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).

Appellants argue that Olson engaged
in a discretionary action that exempted him from liability under the common law
doctrine of official immunity.[1] Under this theory, appellants claim they are
not subject to liability as a matter of law even if a factual dispute exists.

The
common law doctrine of official immunity protects government actors from “suit
for discretionary actions taken in the course of their official duties.” Kari, 582 N.W.2d at 923. Because only discretionary decisions are
protected from suit, a court must determine whether the actor’s decisions were
discretionary or ministerial. See Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998). A discretionary decision involves the
exercise of professional judgment; a ministerial act is “absolute, certain and
imperative, involving merely execution of a specific duty arising from fixed
and designated facts.” Kari, 582
N.W.2d at 923 (citation omitted).

Appellants argue that Olson
exercised sufficient discretion to entitle him to official immunity when
proceeding through the intersection.
Minnesota traffic law requires drivers to stop at red traffic
lights. Minn. Stat. § 169.06, subd.
5(a)(3)(1) (2000). However, Minnesota
law exempts “persons, motor vehicles, and other equipment * * * actually
engaged in work upon the highway” from the traffic laws. Minn. Stat. § 169.03, subd. 6 (2000). This exemption worked to exempt Olson, as
one “engaged in work upon the highway,” from violation of section 169.03. But his exercise of discretion in proceeding
through the intersection against the red light remains subject to common law
negligence. The question becomes
whether appellants were protected by official immunity.

Simmons argues that “Olson’s act of
making a second pass to clear the road was simple and definite” and therefore
ministerial. Simmons likens snow
removal to the removal of a house by the defendants in Williamson v. Cain,
310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976), where the court held that state
employees demolishing a house were not entitled to immunity even though the job
required some degree of decision-making.

Simmons’s reliance on Williamson
is misplaced because the acts of removing a house and plowing snow are inherently
different. We have recognized that
snowplow drivers must

assess the [road]
conditions and rely on [their] judgment to determine the appropriate
speed. * * * [They must also] assess the existing conditions and rely on
[their] judgment to determine the best time and manner for plowing. These decisions involve[] sufficient
discretion to fall within the protection of official immunity.

Because of the hazardous nature of
Olson’s snowplowing activity and because he was exercising discretion under
Minn. Stat. § 169.03, subd. 6, when he proceeded through the intersection, we
conclude that appellants are protected from suit by official immunity.[2]

Accordingly, the district court
erred by denying appellants’ motion for summary judgment.

Reversed.

ROBERT H. SCHUMACHER, Judge (dissenting)

I respectfully
dissent. Case law requires us to
examine immunity on a case by case basis.
See Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988) (whether
officer is immune depends on facts of each case).

In this case,
Olson was plowing a city street, Second Avenue South in Minneapolis. At the time of the accident, he was crossing
Washington Avenue to continue plowing snow on Second Avenue. There is a question of material fact about
whether Olson stopped at the red light before entering the intersection. The manner in which Olson undertook his duty
did not involve discretion. He did not
testify that he weighed the weather and road conditions to determine the best
course of action; rather, he stated, "It doesn't take any special skills
to [plow] downtown." Driving the
snow plow across Washington Avenue did not require any decisionmaking using
"professional judgment" or reflecting "professional goal[s] and
factors of a situation" that are necessary for official immunity. Weiderholt, 581 N.W.2d at 315
(citation omitted); see also Williamson, 310 Minn. at 61, 245 N.W.2d at
244 (removal of house, although requiring some decisionmaking, did not have
complexity inherent in discretionary action.).